Jan 8, 2012

Don't put your family (or yourself) through a guardianship procedure

It's a phone call we get several times a month. The caller's elderly parent does not appear to be capable of managing his own money. Maybe Dad is quickly depleting his savings on internet get-rich-quick schemes and can no longer pay the mortgage. Or Mom's dementia requires that she reside in a nursing home, but the children cannot take steps to preserve her assets because her accounts are in her name alone.

If your parents never made advance plans for someone to manage their financial affairs, and they are now incompetent to create such plans, your options boil down to just one: Guardianship. Petitioning the court to appoint a guardian for your relative is a process that is as time consuming as it is expensive. And it is often traumatizing for parent and family. After a petition is filed, two professionals and a third party are appointed by the court to examine the alleged incapacitated person. Then a hearing is held at which the court decides whether the person is totally or partially incapacitated, a guardian is appointed and duties outlined. Of course, the person who is the subject of the guardianship must also have an attorney to represent his/her interests. 

You can spare your family - and yourself - this agonizing process by creating, in advance, a legally sound Durable Power of Attorney for Property. This document will allow someone to step into your shoes and manage your financial affairs if in fact you become incapacitated. Too many people neglect this vital planning, because they are not willing to deal with the prospect of disability, or they think they can always deal with it at a later time. This kind of denial and procrastination does your family no favors. 

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